A Florida high school’s policy that banned a transgender student from using a boys’ bathroom violated federal law because he was a boy “socially, physically, medically, and on legal documents,” the Department of Justice will argue. Justice Tuesday.
The St. John’s County School Board’s policy restricting restroom use by ‘biological sex’ is only valid under the US Constitution’s Equal Protection Clause if it serves an important government interest, said the DOJ in a brief before oral argument before the full United States Court of Appeals for the Eleventh Circuit.
A three-judge split panel of the court twice upheld Drew Adams’ victory on his equal protection claim and the DOJ was granted special permission to make live arguments before a 12-judge panel at the rehearsal. of the case on February 22.
The interest in student privacy that the board cites is not significantly furthered by its bathroom policy, as all bathrooms at Adams High School began frequenting as he transitioned from wife to wife. man had private individual cabins, the DOJ said.
These stalls were designed to prevent the exposure of a student’s anatomy and there is no evidence that Adams was more likely to violate another student’s privacy than a cisgender boy would be. , or that any misconduct by Adams could not have been addressed through the school’s existing disciplinary process, the DOJ said.
The board’s policy also considered the gender designated on student registration forms as the determining factor in which bathrooms they could use, the DOJ said.
But Adams enrolled in the county school system when he was in fourth grade, before coming out as transgender in eighth grade and starting taking testosterone, having a double mastectomy and taking other steps to move on. to the man, he said. Those steps included changing the gender on her driver’s license and birth certificate to male before starting at Allen D. Nease High School in Ponte Vedra Beach, the DOJ said.
The board declined to consider Adams’ updated sex designation when it forced him to use the girls’ bathroom or one of Nease’s gender-neutral bathrooms, the DOJ said. This type of arbitrary approach is inadequate to show that the policy advances the interest of privacy, according to the council, the department said.
The school board will tell the Eleventh Circuit en banc that the policy is based on biological gender differences that the U.S. Supreme Court has warned against reducing “to nothing.”
It is undisputed that school boards can ban boys from using girls’ bathrooms and vice versa, the school board said in its pre-argument briefing. The fact that there is an interest in privacy when using a bathroom and that the protection of that privacy is an important governmental interest has been understood and “common in all societies and across the world. history,” he said.
Physiological and anatomical differences between the sexes are the reason for this common practice, and the toilet cubicles that the US government points to do not adequately protect student privacy, the council said.
If they did, there would be no need for separate bathrooms for boys and girls at all, because all of Nease High’s gender-specific bathrooms have cubicles, he said.
And the boys’ bathrooms also have urinals, which aren’t enclosed in cubicles or separated by dividers, he said.
Adams had a choice if he wasn’t comfortable using the girls’ bathroom because his school had “11 single-cabin, gender-neutral bathrooms located on the first floor,” the board said.
That’s more than the 10 stalls in the boys’ toilets, he said.
The policy was designed to best serve the interests of all students in the school district, he said. At the time of the trial in the Adams case, only 16 of the district’s 40,000 students identified as transgender, the council said.
No policy is perfect and the equal protection clause does not require perfection, he said.
Impact of the 2020 SCOTUS decision
The DOJ will also say the policy violated Adams’ rights under Title IX of the Education Act of 1972 because it discriminated against him because of his gender.
The Supreme Court decided Bostock v. County of Clayton in 2020 while the board’s appeal was pending, the DOJ said. Bostock argued that “sex” is no longer seen as simply referring to biological sex or birth, but also including a person’s sexual orientation and gender identity, he said.
The board treated Adams differently from cisgender boys whom he was in the same situation about using the bathroom simply because he was assigned a different sex at birth, the DOJ said.
But Title IX and the regulations implementing it expressly permit gender-segregated bathrooms in schools, the board said. Its gender-specific bathroom usage policy is therefore not “something Title IX prohibits”, he said.
And unlike the Employment Discrimination Act at issue in BostockTitle IX was passed under the Expenditure Clause of the Constitution, the board said.
The meaning of “sex” under Title IX is therefore not as fluid as its meaning in the employment context, as Congress has “limited ability to subject entities to federal jurisdiction for violations of the expense clause”, unless these entities know what they are agreeing to. to, he said.
The council could only have agreed to prohibitions against sex discrimination based on the accepted meaning of the term in 1972 when the law was passed, which was biological sex, he said.
That argument was lost because the board did not raise it in district court, the DOJ said.
DOJ lawyers in Washington represent the government. Adams is represented by Lambda Legal Defense and Education Fund Inc., Pillsbury Winthrop Shaw Pittman LLP and Kirsten Doolittle of Jacksonville, Florida. Sniffen & Spellman PA represents the school board.
The case is Adams v. Sch. comic. of St. Johns Cty., Fla., 11th Cir., No. 18-13592, argument in rehearing en banc 02/22/22.